june 12, 2008 shulman, rogers, gandal, pordy & ecker, p.a.1 technology incubator series...

June 12, 2008 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.

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Technology Incubator Series

Strategic Immigration Planning for High Tech and Bio Tech CompaniesBy: Michael L. Kabik, Esq. © 2008Immigration, Nationality & Consular Practice Group

Shulman, Rogers, Gandal, Pordy & Ecker, P.A.

11921 Rockville Pike, Suite 300, Rockville, Maryland 20852-2743

Telephone: (301) 231-0937 Facsimile: (301) 230-2891

E-Mail: [email protected] Web Site: www.shulmanrogers.com


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Work Visas and Permanent Residence

H-1B “Specialty Occupation”F-1 Optional Practical Training (“OPT”)Visa Alternatives to H-1B & OPTPERM Greencard Sponsorship


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H-1B “Specialty Occupation”

H-1B – “Specialty Occupation”Employer-SpecificProfessional

• Requires Bachelor’s degree or equivalent– CIS work experience 3:1 rule

3 Year validity period• 6 year max.• Extensions beyond 6 year max. in limited circumstances

H-1B Cap = 195,000 in FY-2003H-1B Cap = 65,000 in FY-2004 and later


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H-1B “Portability”Greatly simplifies mobility among employers

H-1B workers can start new employment• Upon filing of new “non-frivolous” H-1B Petition

– Subject to final approval of new H-1B Petition

• Need not wait for approval of H-1B Petition to begin work


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H-1B “Portability”Requirements

• Lawfully admitted to U.S.• New petition filed prior to expiration of

authorized stay– CIS has discretion to forgive “lapse in

status”• No prior employment w/o authorization


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H-1B CapEmployers can file H-1B petitions up to 6 months before start date

• FY-2009 starts 10/1/08


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H-1B CapH-1B Lottery

• Computer-generated random selection of H-1B petitions

Wait list selection also by lottery• To replace selected H-1B petitions later denied,

withdrawn, or found ineligible

Non-selected or wait listed H-1B petitions• Returned to sponsoring employers• With filing fees


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H-1B CapEarliest filing date for FY-09 start date of 10/1/08 was 4/1/08

• Initial filing window for inclusion in H-1B lottery– 1st 5 business days– 4/1/08 to 4/7/08


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H-1B CapFY-2009 H-1B Cap reached 4/7/08

• 5th day of H-1B filing window for FY-2009 10/1/08 start dates

Approx. 163,000 H-1B petitions filed subject to FY-2009 cap

• During initial lottery period • Between 4/1/08 to 4/7/08


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H-1B CapOnly non-cap H-1B’s approvable until FY-2010 (start dates beginning 10/1/09)

File H-1B Petitions for FY-2010 start dates up to 6 months early

• Beginning 4/1/09


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H-1B Cap ExemptionsInstitutions of higher education

Nonprofit entities related to or affiliated with institutions of higher education

Nonprofit research organizations

Governmental research organizations


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H-1B Cap ExemptionsHolders of U.S. Masters or higher degrees

• 20,000 H-1B cap exemptions each fiscal year• Random selection lottery

– Preceding the general 65,000 cap lottery– Advanced degree holders not selected for one of

20,000 exemptions also included in 65,000 cap lottery

• FY-2009 advanced degree holder exemptions exhausted 4/7/08


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H-1B Cap ExemptionsProspective H-1B employees previously granted H-1B status

• In the past 6 years• Not left U.S. for >1 year after attaining H-1B

status• Not previously worked for a cap-exempt

organization/not counted against the H-1B cap in past 6 years


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F-1 OPT

F-1 – Optional Practical TrainingUniversity students

12 months cumulative validity period (per degree) includes

• Pre-completion OPT• Post-completion OPT

Additional 17 months post-completion OPT• STEM degree holders


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F-1 OPT

F-1 – Optional Practical TrainingPre-completion OPT

• After enrolled 1 full academic year• Must be directly related to major area of study• Part time during school• Full time during breaks

Post-completion OPT• Must be directly related to major area of study


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F-1 OPT

F-1 – Optional Practical TrainingF-1 students 60-day departure period• Following graduation

F-1 students with post-completion OPT also receive 60-day departure period• Following end of OPT• Without employment authorization


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F-1 OPT

F-1 – Optional Practical TrainingEmployer not required to file visa petition to sponsor studentStudent files Application for Employment Authorization and required documentation directly with CIS


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F-1 OPT - New Interim Final Rule 4/4/08

OPT EAD extensions for qualified F-1 students

12 (original) + 17 (ext.) =29 months totalSTEM degrees (Science, Technology, Engineering, and Mathematics)Employed by business enrolled in CIS E-Verify program


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Once enrolled in E-Verify• Employers must use E-Verify to verify

employment eligibility for all new hires within 3 days of hire


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70,000 F-1 students in OPT• Including 23,000 in STEM fields

CIS estimates 12,000 will apply for STEM OPT extension


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17 month STEM OPT extension (29 months total) gives employers opportunity to sponsor for H-1B status in 2 successive fiscal years


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Eligibility for 17 month OPT extension

F-1 studentCompleted STEM degreeCurrently participating in 12 month post-completion OPT• Based on STEM degree

Employed by U.S. employer in job directly related to degree


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Employed by or accepted offer of employment with employer enrolled in CIS E-Verify programProperly maintain F-1 status


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Where post-completion OPT expires while 17-month extension application is pending, if timely filed • Employment authorization extended after

current EAD expires• Up to 180 days


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F-1 OPT- New Interim Final Rule 4/4/08

“Cap-Gap”Gap in status between• Student’s F-1 status and OPT

employment authorization expiration– In current fiscal year

• Start of H-1B status– In next fiscal year


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Cap-Gap relief for F-1 StudentsWhere pending or approved H-1B petition• For following fiscal year with 10/1/08 start

date

Automatically extends period of F-1 status and employment authorization• Covers period between end of OPT/60-day

departure period to start of FY-09 H-1B petition (10/1/08)


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Cap-Gap relief for F-1 StudentsAutomatic extension terminates if CIS rejects, denies, or revokes H-1B petitionCap-Gap benefits only if no violation of status


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H-1B and F-1 OPT

H-1B cap issues for F-1 OPTRecruitment

Impact of future OPT expirationsStrategic planning to avoid• Delayed start new H-1B employees• Interruptions to existing employees

changing to H-1B status


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H-1B and F-1 OPT

Strategic PlanningFY-2009 H-1B cap exhausted during initial 5-day lottery window on 4/7/08When will FY-2010 H-1B cap hit?Accelerate future H-1B Filings for F-1 OPT’sIdentify potential employees not subject to H-1B cap


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Visa Alternatives to H-1B & OPT

TN – NAFTA ProfessionalCanadaMexico

H-1B1 – FTA ProfessionalChileSingapore


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E-1 – Treaty TraderE-2 – Treaty InvestorE-3 – Professional

Australia


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L-1 – Intracompany TransfereeO-1 – Extraordinary AbilityJ-1 – Trainee


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TN NAFTA Professional

TN – NAFTA ProfessionalEmployer specific

• U.S. Employers• Canadian or Mexican Employers

Limited to Canadians and Mexicans• 67 specified professions

1 Year maximum admission• Indefinite extensions


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TN NAFTA Professional

TN – NAFTA ProfessionalCanadians visa exempt

• Apply directly at Border or POE

Mexicans require TN Visa• Apply directly at U.S. Consular Post• Changes as of January 2004

– 5,500 FY Cap eliminated– LCA approval eliminated– I-129 approval eliminated


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H-1B1 FTA Professional

H-1B1 – FTA ProfessionalU.S.-Chile Free Trade Agreement• Limit = 1,400 per FY

U.S.-Singapore Free Trade Agreement• Limit = 5,400 per FY

“Specialty Occupation” requirement


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H-1B1 – FTA ProfessionalLCA requirementLimited to 18 monthsNo “Dual Intent” as with regular H-1B’s• Required to overcome presumption of

“Immigrant Intent”

After 5 renewals, counts against regular H-1B cap


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H-1B1 – FTA ProfessionalApplication Options

• Primary jurisdiction @ U.S. embassies and consulates abroad

– No CIS approval required

• Alternative application to CIS if in U.S.– If depart U.S., must apply for visa @ U.S. embassy

or consulate abroad

• Change/Extension of status with CIS in U.S.


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E-1 Treaty Trader

E-1 – Treaty TraderEmployer Specific

No prior employment req’d (unlike L-1)

Treaty must exist – U.S. & other country

Majority ownership/control of U.S. entity• At least 50% by treaty country nationals

Alien must be citizen of treaty country

2 Year maximum visa validity period• Indefinite extensions


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E-1 Treaty Trader

E-1 Treaty TraderApplication Options




or consulate abroad



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E-1 Treaty Trader

E-1 Special RequirementsTrade

• Exchange, purchase, or sale of goods, services or technology

Substantial• No minimum dollar threshold• Volume of trade• Number of transactions• Includes binding contracts• Continued course of trade


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E-1 Treaty TraderE-1 Special Requirements

Principally with U.S.• 50%+ of total volume of international trade of

the U.S. entity must consist of trade between U.S. and treaty country

Duties• Supervisory, Executive, Managerial• Highly Specialized Essential Skills• Not including “ordinarily skilled” workers


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E-2 Treaty Investor

E-2 – Treaty InvestorEmployer specific

No prior employment req’d (unlike L-1)

Treaty must exist - U.S. & other country

Majority ownership/control of U.S. entity• At least 50% by treaty country nationals

Alien must be citizen of treaty country

2 Year maximum visa validity period• Indefinite extensions


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E-2 Treaty Investor

E-2 Treaty InvestorApplication Options




or consulate abroad



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E-2 Treaty Investor

E-2 Special RequirementsActive investment

• Irrevocable commitment of funds• Actual active investment

Substantial investment• No minimum dollar amount

– Standards for new or existing business• Investment in process – start-up company• Investor’s own resources• “At risk”


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E-2 Treaty Investor

E-2 Special RequirementsCreation of jobs

• Cannot be marginal– To only support the investor & his family

• Create job opportunities for U.S. workers• Significant impact upon U.S.

Essential role in enterprise• Investor to develop and direct investment• Executives, Supervisors, Specially Qualified Essential

employee• Not including “ordinarily skilled” workers


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E-3 Australian Specialty Occupation


Australian nationals

Limit = 10,500 per FY


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E-3 – Australian Specialty Occupation

Application Options• Primary jurisdiction @ U.S. embassies and

consulates abroad– No CIS approval required

• Alternative application to CIS if in U.S.– If depart U.S., must apply for visa @ U.S. embassy or

consulate abroad



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E-3 Special RequirementsEmployer specific

Labor Condition Application required• Same as H-1B

Must meet “specialty occupation” definition• Same as H-1B• Requires bachelors degree or equivalent


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E-3 Special RequirementsLimited to 2 years• Unlimited extensions

Intent to depart U.S. upon termination of E-3 status


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L-1 Intracompany Transferee

L-1 – Intracompany TransfereeEmployer specificAlien must be employed abroad by foreign entity

• 1 continuous year out of prior 3 years• In “Executive,” “Managerial,” or “Specialized

Knowledge” position• Transfer to U.S. to fill “Executive, ”

“Managerial,” or “Specialized Knowledge” position


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L-1 – Intracompany TransfereeForeign entity must be related to U.S. company

• Same company• Subsidiary• Affiliate


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L-1 – Intracompany TransfereeOwnership/Control

• 50%+ ownership• Effective control

– With <50% ownership


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L-1 – Intracompany TransfereeQualifying Organization

• Doing business in U.S. and other country• During whole period of transfer


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L-1 – Intracompany TransfereeL-1A -- Executives & Managers

L-1B -- Specialized Knowledge Personnel

Visa Validity Terms• 5-7 Year Maximum (3 years initially)• Start-ups (1 year initially)

EB-1 Greencard Benefit


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O-1 Extraordinary Ability

O-1 – Extraordinary AbilityEmployer specific

Aliens of “Extraordinary Ability”• Sciences, Arts, Education, Business & Athletics

3 Year maximum visa validity period• Unlimited extensions

EB-1 Greencard Benefit


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O-1 CriteriaReceipt of a major internationally recognized award

• e.g., the Nobel Prize

Receipt of 3/10 of other forms documentation


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O-1 – 3/10 CriteriaNationally/Intl’ly recognized prizes/awards

• for excellence in the field of endeavor

Membership in associations in the field• which require outstanding achievements• as judged by recognized nat’l or int’l experts

Published material about the person• in professional or major trade publications or

other major media


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O-1 – 3/10 CriteriaParticipation (on a panel or individually) as a judge of the work of others in the field

Original scientific, scholastic, artistic, athletic or business-related contributions

• of major significance in the field

Authorship of scholarly articles in the field• in professional journals or major media


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O-1 – 3/10 CriteriaEmployment in a critical or essential capacity

• for organizations or establishments that have distinguished reputations

High salary or other high remuneration• in relation to others in the field

Other comparable evidence


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J-1 Trainee

J-1 – TraineeExchange Visitor Designation

Training not available in home country

Dept. of State jurisdiction

Apply via DOS approved Program Sponsors

18 Month maximum


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PERM Greencard Sponsorship

Permanent Residence SponsorshipBased upon shortage of qualified U.S. workers

• In metropolitan area of job location• Willing to work for the “prevailing wage”

Requires attempted job recruitment


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PERM ProcessElectronic Filing• Decisions expected within 60-120 days

Pre-filing recruitment and compliance• 90-120 days average


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PERM RequirementsPrior employer recruitmentAttestations• Compliance• Non-discrimination

Strict recruitment requirementsDOL audits• Up to 5 years after filing


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Employer RecruitmentRecruitment Window• 180 days to 30 days before filing

Professional positions• 2 Sunday ads in general circulation

newspaper• Or 1 Sunday ad in newspaper and 1 ad in

professional journal


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Employer Recruitment3 out of 10 alternate forms of recruitment• 1. Job Fair• 2. On-Campus Recruiting• 3. Employer Website• 4. Trade or Professional Organization• 5. Job Search Website


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Employer Recruitment3 out of 10 alternate forms of recruitment• 6. Private Employment Firm• 7. Employee Referral Program• 8. Campus Placement Office• 9. Local or Ethnic Newspaper• 10. Radio or TV ads

1 of above can be within 30 days of filing


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Other RequirementsJob Order with State Workforce AgencyPrevailing Wage Request with State Workforce AgencyInternal Posting at Employer SiteIn House Media Posting


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Other RequirementsMust interview qualified applicantsCan only reject for lawful, job-related reasonsPrepare and retain recruitment reportNo restrictive requirements unless justified by business necessity


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DOL AuditMust maintain audit file for 5 years, including:• Recruitment report justifying those

disqualified• Proof of business necessity• Proof of advertising and alternate forms of

recruitment• Prevailing Wage Determination• Posting Notice


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Legal DisclaimerFacts of individual cases differThe information provided herein is general in nature and should not be relied uponConsult with an experienced immigration attorney with regard to specific cases

june 12, 2008 shulman, rogers, gandal, pordy & ecker, p.a.1 technology incubator series...

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